Proceeding for Support under Article 4 of Family Court Act, Matter of

• Decision Date: 11 December 1975
• Citation: 50 A.D.2d 59,376 N.Y.S.2d 524
• Parties: . Margaretha HOPPL, Petitioner-Appellant, v. Charles Henry HOPPL, Respondent-Respondent. Supreme Court, Appellate Division, First Department
• Court: New York Supreme Court — Appellate Division

Page 524

376 N.Y.S.2d 524

50 A.D.2d 59

In the Matter of a PROCEEDING FOR SUPPORT UNDER ARTICLE 4 OF the FAMILY COURT ACT Margaretha HOPPL, Petitioner-Appellant, v. Charles Henry HOPPL, Respondent-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 11, 1975.

Raoul Lionel Felder, New York City, for petitioner-appellant.

Joel R. Brandes, New York City, of counsel (Lester Wallman, New York City, with him on the brief, Wallman & Kramer, New York City, attys.), for respondent-respondent.

Before MARKEWICH, J.P., and MURPHY, LUPIANO, LANE and NUNEZ, JJ.

LUPIANO, Justice:

In this child support proceeding the petitioner seeks an examination before trial of her former husband on the grounds, Inter alia, that (1) the parties have lived apart since their divorce in 1969 so that she does not know his personal financial situation, but that knowledge gained prior to the divorce coupled with the respondent's continued proprietary interest in the well-known Hoppl Restaurant chain on Long Island indicates that his financial circumstances are greater than reported, and (2) an examination is necessary to avoid a long and protracted trial. The parties were married in August, 1964 and have one child eight years of age. In February, 1969, they entered into a separation agreement which provided, in pertinent part, that the father would pay $125 each week for child support, together with payment of all private school expenses including tuition through college and professional school, maintain a $50,000 life insurance policy with the child as sole beneficiary and pay for the child's medical, dental and drug expenses. In March, 1969, the parties were divorced by foreign decree.

The petitioner declares that the child's weekly needs, in addition to the private schooling expenses, amount to $343.84. In response, the respondent states that he contributes, including payment for private school expenses, $225 per week. At this juncture, the petitioner has made an initial Prima facie showing that the needs of the parties' child have increased. However, the Family Court denied the petitioner's motion for examination before trial on the ground that no special circumstances were shown to warrant such examination. In Stern v. Stern, 39 A.D.2d 87, 332 N.Y.S.2d 334 (1st Dept., 1972), we held that in light of Plancher v. Plancher, 35 A.D.2d 417, 317 N.Y.S.2d 140 (2nd Dept., 1970), affd. 29 N.Y.2d 880, 328 N.Y.S.2d 444, 278 N.E.2d 650, an examination before trial with respect to income and means will be granted where the matrimonial action is not contested and the party sought to be examined has failed to make a showing of special circumstances warranting a denial of that type of relief. Further, in Matter of Handel v. Handel, 32 A.D.2d 946, 304 N.Y.S.2d 76 (2nd Dept., 1969), affd. 26 N.Y.2d 853, 309 N.Y.S.2d 599, 258 N.E.2d 94 (1970)--a child support proceeding--it was held that allegations contained in the petition that both the needs of the children and the income of the father had increased since the date of the separation agreement are sufficient predicate for the granting of an examination. The Appellate Division, Second Department, further underscored the fact that a substantial increase in the financial condition of the father is an independent ground sufficient to support an increase (Matter of Handel v. Handel, supra, 32 A.D.2d at 947, 304 N.Y.S.2d at 77). Although a viable separation agreement may be viewed as 'a special circumstance as to preclude disclosure' in a divorce action, involving as it does the relationship between the parties as man and wife (see Frisina v. Frisina, 45 A.D.2d 869, 870, 358 N.Y.S.2d 6, 7 (2nd Dept., 1974)) a different relationship is involved in a child support proceeding, to wit, that of parent and child. The parties cannot by a separation agreement eliminate or diminish either parent's duty to support a child of the marriage (Family Court Act § 461(a)). Further, '(t)he instant action brought by the (petitioner), the (respondent's) former wife, is not brought to recover any money for herself, but is brought for the benefit of and in behalf of the infant (child). The husband (respondent herein) has not been divorced by his (child) nor absolved of his liabilities to (the child). The (child is) entitled to support, maintenance and education in accordance with his financial means and ability (Laumeier v. Laumeier, 237 N.Y. 357, 143 N.E. 219; Van...